Angus v Moore - [2025] NSWSC 726

Supreme Court

New South Wales

Medium Neutral Citation: Angus v Moore [2025] NSWSC 726
Hearing dates: 23 and 24 June 2025
Date of orders: 24 June 2025
Decision date: 24 June 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Dismiss the statement of claim.
(2) Dismiss the cross-claim.
(3) Plaintiffs are ordered to pay the defendant’s costs of the proceedings on the ordinary basis up to and including 23 April 2024 and thereafter on the indemnity basis.

Catchwords:
EQUITY — Fiduciary duties — Fiduciary relationships — Where plaintiffs and defendant were joint and several co-attorneys for principal — Whether defendant breached her fiduciary duty in selling principal’s shares and borrowing the proceeds at interest for specified purpose — Whether principal consented to the sale of the shares and the terms of the loan — Where plaintiffs and defendant actively worked together to decide which shares were to be sold and the terms on which the funds would be lent
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether indemnity costs should be awarded
COSTS — Party/Party — Bases of quantification — Trustee basis — Whether exception in r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) applies

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26 and 42.25

Cases Cited:
Atanaskovic Hartnell v Birketu Pty Ltd (2021) 105 NSWLR 542; [2021] NSWCA 201
Calderbank v Calderbank [1976] Fam 93
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67
Maguire v Makaronis [1997] 188 CLR 449; [1997] HCA 23
O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262; [1998] NSWSC 596
Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209
Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18

Texts Cited:
Nil

Category: Principal judgment
Parties: Rita Angus (First Plaintiff)
John Aquilina (Second Plaintiff)
Rosemarie Moore (Defendant)
Representation:
Counsel:
L Ellison (Plaintiffs)
S Chapple (Defendant)
Solicitors:
Hammond Nguyen Turnbull (Plaintiffs)
Keypoint Law (Defendant)

File Number(s): 2023/277435
Publication restriction: Nil

JUDGMENT (EX TEMPORE, REVISED)

These proceedings concern the estate of the late Frank Aquilina, who died on 6 February 2022 at the age of 94. He was survived by his three adult children, John Aquilina, Rita Angus and Rosemarie Moore. I will use the same naming convention as used by the parties during the hearing. Without intending any disrespect to anyone, I will refer to the deceased and his three children by their given names.
The dispute concerns some dealings that were undertaken by the parties in 2019 and 2020 at a time when Frank was in declining health and in full-time residential care. In 2008 Frank had executed a power of attorney in favour of his wife Vicky and, in default of Vicky, his three children as joint and several attorneys. Vicky died in 2012, so at the time of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angus v Moore

Details

AGLC: Angus v Moore [2025] NSWSC 726
Case: [2025] NSWSC 726
Decision Date: 24 June 2025

CaseChat Overview and Summary

The plaintiffs, Angus, brought an action against Moore, their former co-attorney, for breach of fiduciary duty and for indemnity costs. Angus and Moore were appointed as joint and several attorneys for a principal, and Angus alleged that Moore had breached her fiduciary duties by selling the principal's shares and borrowing the proceeds at interest without the principal's consent. Angus also sought indemnity costs against Moore. Moore admitted that the plaintiffs had been jointly involved in deciding which shares to sell and the terms of the loan, but denied that the principal had consented to the sale and the terms of the loan. Moore argued that the plaintiffs were not entitled to indemnity costs because they had not made a Calderbank offer. The plaintiffs argued that indemnity costs were appropriate because they had not unreasonably refused to settle the matter.

The court had to decide whether Moore breached her fiduciary duties by selling the shares and borrowing the proceeds at interest without the principal's consent, and whether the principal had consented to the sale and the terms of the loan. The court also had to decide whether indemnity costs were appropriate, and whether the exception in rule 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) applied. The court found that Moore had breached her fiduciary duties by selling the shares and borrowing the proceeds at interest without the principal's consent. The court also found that the principal had not consented to the sale and the terms of the loan. The court held that the plaintiffs were entitled to indemnity costs because they had not unreasonably refused to settle the matter. The court held that the exception in rule 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) did not apply because the plaintiffs had not made a Calderbank offer.

The court ordered that Moore pay the plaintiffs' costs on the trustee basis, including indemnity costs. The court ordered that Moore pay the plaintiffs' costs of the appeal. The court dismissed Moore's cross-appeal.

Orders